11/14/2012

Cass Sunstein on Regulatory TakingsMike Rappaport

I have been doing a series of responses to Cass Sunstein’s criticism
of the originalist Supreme Court Justices: See these posts on affirmative action, and commercial speech. This post discusses Sunstein’s criticism of regulatory takings:

This
is far from the only area in which they have been doing so. For
example, many conservatives believe in strong protection of property
rights. They want courts to use the Fifth Amendment’s takings clause to
strike down regulations that interfere with property rights -- even
though some leading historical accounts suggest that when originally
ratified, the Fifth Amendment
was limited to actual physical takings of property, and didn’t restrict
regulation at all. Here too, Justices Scalia and Thomas have made no
serious inquiry into the original understanding.

I agree with
Sunstein’s position here more than I have in my previous posts. I agree
that Scalia and Thomas have not made much of an inquiry into the
original meaning here. I also agree with that some leading historical
accounts suggest the original Fifth Amendment did not restrict
regulatory takings.

But there is more to the matter than this.
First, while I agree that the Fifth Amendment passed in 1791 did not
cover regulatory takings, the 14th Amendment passed in 1868 may have. I present arguments for this conclusion here.
People have recognized that the individual rights applied against the
states after the Civil War had a different content than those that
existing in 1791. The 14th Amendment enactors also had a
more individual rights understanding of government than the enactors of
the original Bill of Rights. Further, there is strong evidence that the
Takings Clause had become much more embedded into American traditions
by 1868 and some evidence that it extended to at least some regulatory
takings.

Second, Sunstein also ignores, as Mike Ramsey has pointed out,
that there is significant precedent beginning at least in the 1922 case
of Pennsylvania Coal v. Mahon that some regulations can be takings. So
even if the original meaning did not protect against regulatory
takings, precedent does.

This is once again another area where
more originalist work is needed. But for now Cass Sunstein’s attack on
the originalist Justices is only partially right.